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Maxwell v. Clay

United States District Court, D. Arizona

May 11, 2018

Ray Maxwell, Petitioner,
v.
Becky Clay, Respondent.

          REPORT AND RECOMMENDATION

          HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Petition). (Doc. 1.) This Court determines that the District Court does not have jurisdiction to consider the Petition. This is because Petitioner cannot establish the narrow circumstances under which the “savings clause” (also referred to the “escape hatch” provision) of 28 U.S.C. § 2241 is satisfied.

         The Petitioner filed a direct appeal to the United States Court of Appeals for the Ninth Circuit and three (3) petitions seeking habeas relief under 28 U.S.C. § 2255 in the Central District for the District of California. Petitioner's direct appeal and his three § 2255 petitions were denied. For this Court to consider the instant § 2241, Petitioner must establish both his actual innocence and that he has not had an unobstructed “procedural shot” at presenting the claims raised in the Petition. As explained below, Petitioner has failed to do so and this Court recommends that the District Court deny the Petition.

         BACKGROUND

         The Charges

         In 2004, Petitioner organized the armed robberies of at least three banks in the Los Angeles, California, area over a six-month time period. (Doc. 11 at ¶ 1.) Petitioner did not enter the banks during the robberies; his role was selecting and casing the banks to be robbed, planning the robberies, instructing crew members on their roles in the robberies, and providing disguises for the robbers. Id. at Ex. 2 (under seal) at ¶¶ 20, 24-27, 32-34, 38-44; Ex. 3 at pp. 20-22. Petitioner was ultimately charged with one count of conspiring to commit three armed bank robberies (Count 1), one count of attempted bank robbery (Count 2), two counts of armed bank robbery (Counts 4 and 6) and three counts of knowingly using, carrying or brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) & (iii) (hereinafter, “§ 924(c)”) (Counts 3, 5, and 7). Id. at Ex. 1. Based only on the three § 924(c) charges in the First Superseding Indictment, Petitioner faced a statutory mandatory minimum sentence of at least 57 years' imprisonment.

         The Plea Agreement

         Petitioner entered a conditional plea agreement that provided he would plead guilty to conspiracy (Count 1), attempted armed bank robbery (Count 2), two counts of armed bank robbery (Counts 4 and 6) and the use, carrying, brandishing and discharging a firearm (Count 5). Id. at Ex. 3. The conductional plea agreement permitted Petitioner to appeal the denial of his motion to suppress certain intercepted communications. In the plea agreement, Petitioner also agreed that he qualified as a career offender pursuant to United States Sentencing Guidelines (USSG) § 4B1.1(a) and that a 30-year term of imprisonment was appropriate. Id. at pp. 10-11. In exchange for his guilty plea, the government agreed to dismiss the two other § 924(c) counts charged in the First Superseding Indictment. Those § 924(c) counts carried a combined 50-year mandatory consecutive sentence. Id. at pp. 12-13. At the change of plea hearing, Petitioner affirmed his understanding that he was admitting guilt as set forth in the plea agreement. (Doc. 11 at Ex. 4.) The United States District Court for the Central District of California accepted Petitioner's guilty plea. Id.

         The Sentencing

         The presentence report guidelines calculations tracked the calculations agreed to by the parties in the plea agreement with one exception: the presentence report applied a 2-level enhancement for physical restraint for one of the armed robberies. Id. at Ex. 2 at pp. 14-15; Ex. 3 at p. 9. Accordingly, the United States Probation Office calculated Petitioner's sentencing range to be 355-413 months as opposed to 330-382 months as set forth in the plea agreement. Id. at Ex. 2 at p. 34; Ex. 3 at p. 10. In its sentencing position statement, the government asked the district court to impose a sentence of 30 years' imprisonment per the plea agreement. Id. at Ex. 5. On May 5, 2008, Senior District Judge Lew sentenced Petitioner to 30 years in prison consistent with the plea agreement. Id. at Ex. 7.

         The Direct Appeal

         As permitted by the plea agreement, Petitioner appealed the district court's denial of his motion to suppress. On December 30, 2009, the Ninth Circuit denied Petitioner's appeal. Id. at Ex. 8.

         The First § 2255 Habeas Petition

         On December 17, 2010, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Id. at Ex. 9. As grounds for relief, Petitioner alleged that he was not competent to accept the terms of the negotiated plea agreement or to enter a guilty plea claiming that he was under the influence of medication to treat mental illness at the time of his guilty plea and that his trial counsel rendered ineffective assistance by allowing him to plead guilty. Id. Senior District Judge Lew denied Petitioner's petition. Id. at Ex. 10. Thereafter, Petitioner filed a motion “for reconsideration to alter or amend judgement.” Petitioner's motion was denied. (Doc. 11 at Exs. 11, 12.) Both Judge Lew and the Ninth Circuit, denied Petitioner's request for a certificate of appealability. Id. at Exs. 13, 14.

         The Second or Successive § 2255 Petition

         On February 10, 2014, without first applying to the Ninth Circuit for leave to file a second or successive § 2255 petition, Petitioner filed a second § 2255 petition raising the same claim that he raised in his first § 2255 petition. Id. at Ex. 15. The government filed a motion to dismiss which was granted by Senior District Judge Lew. Id. at Ex. 16. On July 22, 2014, Petitioner moved for reconsideration which Judge Lew denied. Id. at Exs. 17, 18.

         The Third or Subsequent Successive ...


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